Citation Nr: 1301953
Decision Date: 01/17/13 Archive Date: 01/23/13
DOCKET NO. 07-12 726 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for a chronic disability manifested by gastrointestinal problems, to include irritable bowel syndrome, with consideration as being due to service in Southwest Asia during the Persian Gulf War.
2. Entitlement to service connection for a chronic disability manifested by sleep impairment, to include obstructive sleep apnea, with consideration as being due to service in Southwest Asia during the Persian Gulf War.
3. Entitlement to service connection for a chronic disability manifested by joint pain, with consideration as being due to service in Southwest Asia during the Persian Gulf War.
4. Entitlement to service connection for a low back disability.
5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left foot disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Wishard, Counsel
INTRODUCTION
The Veteran had active military service from November 1979 to September 1991.
These matters come before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama.
These matters were previously before the Board in May 2010 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the Board's remand, and the Board may now adjudicate the appeal.
In its May 2010 remand, the Board remanded the newly reopened issue of entitlement to service connection for an acquired psychiatric disability to include depression. In a July 2011 rating decision, the RO granted entitlement to service connection for major depressive disorder effective from September 2002; thus, that issue is no longer for appellate adjudication.
The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for fibromyalgia has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The Veteran had service in Southwest Asia from October 1990 to April 1991.
2. The Veteran's STRs are negative for complaints of irritable bowel syndrome (IBS).
3. The evidence of record, which reflects that the Veteran has diarrhea for approximately 48 hours once a month, is against a finding that the Veteran has IBS which has manifested to a degree of 10 percent or more.
4. There has been no demonstration by competent medical, or competent and credible lay evidence that the Veteran has a gastrointestinal disability causally related to active service.
5. The Veteran's sleep difficulties (e.g. trouble falling asleep) have been clinically determined to be part of her service-connected psychiatric disability.
6. The Veteran's STRs are negative for any complaints of, or treatment for, sleep apnea.
7. There has been no demonstration by competent medical, or competent and credible lay evidence that the Veteran has a diagnosed sleep disability (separate and apart from a symptom of her depression) to include sleep apnea, causally related to active service.
8. The Veteran's STRs are negative for any complaints of, or treatment for, a joint disability.
9. The Veteran has been diagnosed with osteoarthritis and tenosynovitis of the hands, a hip fracture, a neck sprain, a shoulder strain, degenerative joint disease of the knees, and tendonitis of the elbows; thus her disabilities are not "undiagnosed" for purposes of 38 C.F.R. § 3.317.
10. There has been no demonstration by competent medical, or competent and credible lay evidence that the Veteran has an undiagnosed disability, manifested by joint pain (other than fibromyalgia), or that she has a joint disability causally related to active service.
11. There has been no demonstration by competent medical, or competent and credible lay evidence that the Veteran has a low back disability causally related to active service.
12. In an unappealed July 1996 decision, the RO denied the Veteran's claim for entitlement to service connection for a left foot disability.
13. Some of the evidence received since the July 1996 RO decision is new; however, none of it is material because it does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left foot disability.
CONCLUSIONS OF LAW
1. A chronic disability manifested by gastrointestinal problems, to include irritable bowel syndrome, was not incurred in or aggravated by service; the Veteran does not exhibit gastrointestinal signs and symptoms to a compensable degree as a manifestation of an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1113, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012).
2. A chronic disability manifested by sleep impairment, to include sleep apnea, was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1113, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012).
3. A chronic disability manifested by joint pain (other than fibromyalgia) was not incurred in. or aggravated by service. 38 U.S.C.A. §§ 1110, 1113, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012).
4. A low back disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 1154, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2012).
5. Evidence received since the July 1996 RO decision which denied entitlement to service connection for a left foot disability, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).
Duty to Notify
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.
In correspondence dated in September 2003, VA notified the Veteran of what evidence was required to substantiate a claim for entitlement to service connection and to reopen a previously denied claim, and of her and VA's respective duties for obtaining evidence. The notice was deficient in that it did not inform the Veteran of the criteria for a disability rating and effective date in the event of award of the benefits sought. In addition, it did not inform the Veteran of the reason for the prior denial of her claim for entitlement to service connection for a left foot disability. Such notice was provided to the Veteran in January 2011.
In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.
Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claims were readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), Dingess/Hartman, and Kent. The Veteran has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices
All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).
Duty to assist
With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, VA and private examination and treatment records, and the statements of the Veteran and her mother in support of her claims. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to attempt to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.
VA examinations and/or opinions were obtained in June 2010 and September 2010. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations/opinions obtained in this case are adequate as the opinions are predicated on examinations of the Veteran, review of STRs and post service clinical records, diagnostic testing where appropriate, and interviews with the Veteran regarding her symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4).
VA is not required to obtain a medical opinion for a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Moreover, the Board finds that VA need not obtain a VA opinion on the issue of entitlement to service connection for sleep apnea, as the evidence of record does not indicate that it may be causally related to active service. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006)
Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claims.
Legal criteria
Service Connection in general
Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R.
§ 3.303(d).
"Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009).
Service Connection specific to Persian Gulf War Veterans
In order to obtain a grant of service connection pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004).
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id.
Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome (IBS), as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi symptom illness. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2) (2012); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology).
The controlling regulation 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. See 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (amending 38 C.F.R. § 3.317(c) to allow for presumptive service connection for nine infectious diseases.) As none of the enumerated diseases are at issue in this case, the Board has omitted listing the diseases or discussing them.
Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c).
A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e) (2012); The Persian Gulf War is defined as the period beginning August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law. 38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i). The Veteran's military records document that she served in Southwest Asia during the pertinent time period. Therefore, the above-described provisions possibly apply to this case.
In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability.
New and material evidence
In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2011).
An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996).
"New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993).
In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim).
Analysis
The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.
Irritable Bowel Syndrome (IBS)
The Veteran asserts that she has IBS due to active service. The first element in a claim for entitlement to service connection is competent credible evidence of a current disability. SSA records are negative for any indication that the Veteran has IBS.
A May 1983 STR reflects that the Veteran denied any stomach, or intestinal trouble. A May 1985 STR reflects that the Veteran denied any change in bowel habits. The Veteran's July 1991 report of medical examination for separation purposes reflects that her systems were normal. She was noted to be in "good health."
A January 1995 record reflects that the Veteran reported constipation. She denied diarrhea.
A January 1996 private clinical record from St. Joseph's Hospital reflects that the Veteran had complaints of diarrhea and vomiting. A March 1996 record reflects that the Veteran again sought treatment for the same symptoms which began the day previously. A June 1996 record reflects that the Veteran complained of diarrhea which had started the previous Saturday. It was noted that this was the third time that year that the Veteran had sought treatment for the same symptoms.
A January 2001 private clinical record, for neurologic purposes, reflects that the Veteran denied GERD (Gastroesophageal reflux disease) problems or ulcer disease. The report is negative for any reference to IBS. An August 2001 psychiatric evaluation is also negative for any reference to IBS; although both records reflect that the Veteran reported her medical history, to include other disabilities.
A March 2001 VA clinical record reflects that the Veteran reported that she has no GI complaints; however, an April 2001 private record from Dr. J.D. reflects that the Veteran "went on to describe bowel habit and she is clearing [sic] describing irritable bowel syndrome which certainly goes along with her fibromyalgia."
An October 2001 VA clinical record reflects that the Veteran had "crampy abdominal pain with diarrhea, but no constipation." It was questioned as to whether she had IBS. Records dated in 2001 and 2002 list an active medication of hyoscyamine for abdominal cramps.
A March 2002 clinical record from Dr. J.D. reflects that the Veteran sought treatment for a follow up evaluation for her left arm. She noted that she had complaints of neck pain, right elbow pain, left hand pain, a cough, night sweats, hot and cold flashes, and mood swings. The record reflects that the Veteran "is interested in disability and would like some documentation from us as far as her disability. No other complaints at this time." He also stated, in the clinical record, that the Veteran "would like documentation stating which she believes her most significant medical problems are today were are [sic]; trouble sleeping, gastrointestinal signs and symptoms, muscle and joint pain in both arms, feet and neck, she also notes that her disability must be one that can not [sic] be true to any known diagnosis".
In April 2002 correspondence from South Coast Medical Group, Dr. J.D. stated that the Veteran "states that her most significant problems are trouble sleeping, gastrointestinal signs and symptoms, muscle and joint pain in both arms, feet and neck, and also notes that her disability to date has not been related to any known diagnosis." The Board notes that Dr. J.D. did not report any diagnosis, and did not report that he had done diagnostic testing on the Veteran to determine a possible etiology for her complaints; he merely repeated what the Veteran had asked him to state, as noted in his March 2002 clinical record. This is especially noteworthy as he stated in April 2001 that the Veteran was clearly describing IBS, and yet he did not diagnose her with this, and stated that she did not have any known diagnosis. Based on the foregoing, the Board finds that the opinion of Dr. J.D. lacks probative value.
A June 2002 VA examination for pension purposes reflects that the Veteran reported irritable bowels for two years, for which she was taking hyoscyamine.
A June 2003 VA clinical record reflects a request for hyoscyamine for IBS.
A June 2005 private clinical record from Rheumatology Associates of North Alabama reflects that the Veteran was seen for "diffuse pain". In reviewing the Veteran's history, it was noted that the Veteran had "no bowel or bladder disturbance."
An April 2006 VA clinical record reflects that the Veteran sought treatment for complaints of left lower quadrant pain with "off and on" diarrhea episodes with no constipation and no blood in the stool; although she reported that she had had a black stool one week earlier. The Veteran requested a referral to Alabama Digestive Disorder Center for a colonoscopy. It was noted to "rule out IBS versus a colon mass."
A May 2006 private medical record from Alabama Digestives Disorders Center reflects that the Veteran reported a ten year history of chronic abdominal pain and diarrhea, which was worse for the past two years. The examiner noted that the Veteran had been scheduled for a colonoscopy to rule out inflammatory colitis versus IBS or colon polyps.
A September 2006 Huntsville Hospital GI procedure note reflects that a colonoscopy was performed on the Veteran. She had complained of chronic diarrhea for the last six months. The assessment was sigmoid polyp, which was removed; left sided colon polyps, which were cauterized; and terminal ileal erythema, for which biopsies were taken to rule out microscopic colitis.
January 2007 VA clinical records reflect that the Veteran had gotten sick while in Africa (in December 2006 while on vacation) with a "GI bug". It was noted that when she came back from Africa, she was still having some diarrhea, but it had resolved. A February 2007 VA clinical record, with regard to the Veteran's back complaints, reflects that the Veteran denied abdominal pain and reported normal bowel movements.
A June 2010 VA examination report reflects that the Veteran reported episodic diarrhea, with no apparent triggers, which had an onset monthly and was 48 hours in duration. She denied treatment, and denied over the counter medication. She also denied blood in the stool. The Veteran gave an onset date of 2000. The examiner diagnosed the Veteran with IBS.
A December 2011 VA clinical record reflects that the clinician had received a report of the Veteran's colonoscopy. It was noted that the impression is "diverticulosis in colon with normal ileum.
Diverticulosis and IBS, while both affect the bowels, are not the same disability, and the record is unclear as to whether the Veteran has IBS or diverticulosis, or both. In addition, the record reflects that the Veteran had colon polyps, which may cause diarrhea. Regardless, assuming arguendo, that the Veteran does have IBS, service connection is not warranted for the reasons discussed below.
The record reflects that the Veteran had service in Southwest Asia from October 1990 to April 1991. In order to obtain a grant of service connection pursuant to 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present evidence that IBS became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. The evidence of record is against such a finding.
Because the specific condition of IBS does not appear in the rating schedule, IBS is evaluated by analogy under Diagnostic Code 7325 which in turn instructs to rate as for irritable colon syndrome pursuant to Diagnostic Code 7219. Diagnostic Code 7319 provides that mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is rated as noncompensable (0 percent) disabling. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. 38 C.F.R. § 4.114.
As noted above, the June 2010 VA examination report reflects that the Veteran reported episodic diarrhea which had an onset monthly and lasted 48 hours in duration. She denied blood in the stool. The Board considers these symptoms to be mild (i.e. disturbances of bowel function with occasional episodes of abdominal distress). Thus, it would be rated as noncompensable (0 percent) disabling, and service connection on a presumptive basis is not warranted.
In addition, there is no clinical evidence of record that the Veteran has IBS causally related to, or aggravated by, active service. Thus, service connection on a nonpresumptive basis is not warranted. As noted above, the Veteran's STRs are negative for IBS or a gastrointestinal disability in service.
The Veteran is competent to report that she has had stomach pain and diarrhea; however, she has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. As such, her lay opinion does not constitute competent medical evidence and lacks probative value as to etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, as noted above, the clinical records, and the statements of the Veteran, reflect an onset of symptoms after service.
In the absence of credible evidence of continuity of symptomatology and a lack of a clinical nexus opinion causally relating a current disability to active service, service connection on a nonpresumptive basis is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Sleep Disability
The Veteran avers that she has a sleep disability causally related to active service. As noted above, the first element for a claim for entitlement to service connection is competent credible evidence of a current disability. A January 2004 private record reflects a diagnosis of psychophysiological insomnia. A February 2004 private record reflects an assessment of obstructive sleep apnea.
The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. A May 1983 report of medical history for reenlistment purposes reflects that the Veteran reported frequent trouble sleeping. The physician's summary and elaboration of all pertinent data reflects that the Veteran "has problems falling asleep at night, tosses and turns for about an hour." (The Board notes this is prior to any service in Southwest Asia during the Persian Gulf War.) The Veteran's STRs are negative for complaints of, or treatment for, sleep apnea.
The Board finds that the third element for service connection, continuity of symptomatology since service, or a competent clinical opinion causally relating a current disability to service, has not been met.
A post-service June 1994 private record reflects that the Veteran reported that she had been working at the post office since the fall of 1993. It was noted that the Veteran reported that she had fatigue at that time regardless of the shift worked. She stated that she "sleeps well."
A January 1995 Charter Savannah Behavioral Health System discharge summary report reflects that the Veteran was admitted on an emergency basis, stating that she had been feeling depressed for the past several months. She noted mood swings, getting easily upset, a lack of energy, and experiencing difficulty initiating sleep.
A January 2004 Alabama Sleep Clinic record reflects that the Veteran presented with difficulty sleeping through the night. It was noted that she "normally has no difficulty initiating sleep but has multiple intermittent awakenings and early morning awakening with difficulty returning back to sleep. She believes that this has been occurring since about 1991, after she retired from the army. . . . Upon questioning, she has several sleep hygiene issues, including attempting to sleep when she is not drowsy and spending an excessive amount of time in bed awake, not having a relaxing pre-sleep ritual, as well as not maintaining a regular sleep-wake cycle. She will sleep in for long periods of time of the weekend as well as take naps." The assessment was obstructive sleep apnea syndrome (provisional) and psychophysiological insomnia.
A February 2004 sleep study interpretation from The Sleep Center reflects an assessment of obstructive sleep apnea.
A May 2006 private clinically record from Alabama Digestive Disorders Center reflects that the Veteran has a past medical history of insomnia.
In an April 2007 statement, the Veteran stated that she has had problems with sleep since her 20s while serving in the service. She reported problems falling asleep and staying asleep. She reported that she also has sleep apnea.
A September 2010 VA examination report reflects the opinion of the clinical psychologist that the Veteran's sleep impairment is a part of her depressive disorder and does not warrant a separate Axis 1 diagnosis. The Veteran is service connected for major depressive disorder, evaluated as 70 percent disabling, effective from September 2002. The Board notes that chronic sleep impairment is a symptom listed as an example of occupational and social impairment related to mental disorders in the General Rating Formula for Mental Disorders.
In addition, there is no competent credible evidence of continuity of symptomatology of sleep apnea since service, and there is no competent opinion which causally relates sleep apnea to service. The earliest clinical evidence of sleep apnea is in 2004, more than 12 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
The Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible; however, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) However, in the present case, not only is there a lack of clinical records between separation from service and diagnosis in 2004, but there are no competent credible lay statements that the Veteran had sleep apnea in service. The Veteran has averred that she has had problems sleeping since service with regard to falling asleep and staying asleep and such problems are noted in the STRs; however such symptoms have been attributable to her depression.
Based on the foregoing, the Board finds that the Veteran is not entitled to service connection for a sleep disability, to include insomnia and/or sleep apnea. There is no clinical evidence that the Veteran has a sleep disability, separate and apart from her depression, which is causally related to active service or a service connected disability. In addition, the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. As such, her lay opinion as to sleep disturbances, to include sleep apnea, does not constitute competent medical evidence and lacks probative value. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, sleep apnea is not a disability which warrants service connection on a presumptive basis.
The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Joint Pain
The Veteran asserts that she has joint pain causally related to active service. The claims file includes numerous complaints of joint pain, to include elbow, wrists, shoulder, and hips. The Board notes that the Veteran has been diagnosed with fibromyalgia; however, she is not service-connected for it. Service connection for fibromyalgia was denied by the RO in October 2001; the Veteran did not appeal the denial and it became final. The Board, in the introduction above, has referred the claim of whether new and material evidence has been received to reopen a claim for entitlement to fibromyalgia to the AOJ. Thus, in the discussion here, the Board has considered whether the Veteran is entitled to service connection for a joint disability, other than fibromyalgia. As is discussed below, the Board finds that she is not.
The Veteran's STRs are negative for complaints of joint pain. A May 1983 report of medical history reflects that she denied having had a joint deformity. Her July 1991 report of medical examination for separation purposes reflects that her systems were normal. She was noted to be in "good health."
The Veteran underwent a VA examination in June 2010. The examination report reflects that the Veteran reported joint pain in the elbow and knees. She reported the onset of elbow pain in the late 1990s, and the onset of knee problems in 2000. The Board notes that, by the Veteran's account, her pain began many years after separation from service. In addition, the Veteran's STRs are negative for any complaints of, or treatment for, a elbow or knee disability.
The Board will first consider the Veteran's complaints of an elbow disability. An April 1996 VA clinical record reflects that the Veteran reported pain in her elbow. The Veteran reported "extreme pain" for two months for the right elbow, and starting pain in the left elbow. The impression was "tennis elbows." This complaint is approximately five years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
Correspondence from Dr. M.T., dated in June 1997, reflects that the Veteran had chronic right lateral epicondylitis (i.e. tennis elbow).
A 1998 Southside Office clinical record reflects that the Veteran presented with a history of right elbow pain since 1995. An MRI showed an old osteochondral defect. The examiner stated that at that point, he could not find an objective cause for the Veteran's subjective complaints of pain.
A December 2000 VA clinical record reflects that the Veteran reported problems with her right elbow beginning in 1996 associated with repetitive activity and requiring her to stop working.
In private medical correspondence, dated in December 2000, Dr. J.D. noted that the Veteran appears to have "chronic tendonitis of her elbows." He further stated that fibromyalgia often occurs after a trauma, but [the Veteran's] particular complaint, i.e. elbow pain, is not part and parcel of a classic fibromyalgia syndrome but appears to be chronic problem that is secondary to her injury at the post office . . ."
A July 2001 initial evaluation record by Dr. J.F. reflects that the Veteran reported that her pain started in 1996 "when she was doing a lot of keying on a machine and sorting or throwing mail as she describes it for the post office." The impression was "intermittent bilateral lateral epicondylitis", and "very mild left medial epicondylitis." A South Coast Imaging center record from July 2001 reflects a radiographically normal left elbow.
A June 2002 VA examination report reflects that the Veteran reported the onset of elbow pain in 1995 while working in the post office. She reported that she was diagnosed with tendonitis.
An August 1, 2002 record from Dr. E.A. reflects that the Veteran had a positive Tinel's sign as to the left upper extremity.
An August 27, 2002 EMG report from Dr. J.F. reflects that the Veteran has complaints of "aching pain in the left elbow" since 1996. The Veteran had a normal EMG NCS of the left upper extremity. It was noted that there was no electrical evidence for neuropathy.
An October 2, 2002 record from Dr. E.A. reflects an impression of right ulnar neuropathy, right medial neuropathy, carpal tunnel syndrome, and right upper extremity with lateral epicondylitis, and myofascial pain.
A January 2008 VA clinical record reflects that the Veteran reported having more pain in both elbows. She reported that she had been diagnosed with ulnar neuropathy in the right arm and tennis elbow bilaterally in 1996. Upon examination, she had bilateral elbow pain in the medial and lateral epycondyles with no erythema noted. There was no crepitation at flexion or extension, but mild pain.
The June 2010 VA examination report reflects that range of motion of the elbows was 0 to 145 degrees. Supination was 0 to 85 degrees and pronation was 0 to 80 degrees. There was no objective evidence of pain on active motion. There was no pain on motion after at least three repetitions of range of motion. There were no additional limitations of motion after repetitive motion. The examiner found that the Veteran did not have a disability of the elbows.
In sum, the evidence is conflicting as to whether the Veteran has a current bilateral elbow disability. Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Service connection claim requires, at a minimum, medical evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran filed her claim for joint pain in September 2002. Assuming that the Veteran does have a current bilateral elbow disability, service connection is still not warranted. The evidence of record overwhelming reflects that the Veteran's complaints of elbow pain began years after separation from service, while she was working at the post office, and due to her work there. There is no clinical evidence of record which reflects that she has an elbow disability causally related to active service.
The Board will next consider the Veteran's complaints of an knee disability. The Veteran's STRs are negative for complaints of, or treatment for, her knees. An April 1993 radiology record for the left knee reflected a normal left knee.
An August 1993 VA record reflects that the Veteran complaint of a painful right knee for two weeks. This was approximately two years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
A June 2002 VA examination report for non-service connected pension reflects that the Veteran reported several problems, to include problems of the bilateral elbow, bilateral feet, neck, low back, bilateral thumbs, irritable bowels.
The June 2010 VA examination report reflects that there was tenderness of the medial right knee. Range of motion was 0 to 120 degrees. The Veteran was diagnosed with "very mild degenerative joint disease of the knees." The examiner opined that the Veteran's disability was not caused by or a result of active duty. The rationale was based on the fact that there was no evidence of a knee disorder in service, or of a chronic condition of the knees in service.
As the Veteran has degenerative joint disease of the knees, the first element for entitlement to service connection has been met. Nevertheless, service connection is not warranted as there is no competent credible evidence of record of an incident in service to which the Veteran's degenerative joint disease of the knees may be causally related, there is no continuity of symptomatology since service, and there is no clinical evidence causally relating the Veteran's bilateral knee disability to service. (The Board notes that entitlement to service connection for a right knee disability was denied by the RO in a March 2007 rating decision.)
The Board has also considered whether the Veteran is entitled to service connection under 38 C.F.R. § 3.317 for an undiagnosed illness of the joints, but finds that she is not. A June 2004 clinical record from Dr. J. H. reflects that the Veteran reported a two year history of pain in her right and left hands. The impression was osteoarthritis and tenosynovitis of the hands. The Veteran has also been diagnosed with a hip fracture following a motor vehicle accident in 2006, and a neck sprain and a shoulder strain after picking up a heavy object in November 1993. As the Veteran has been diagnosed with degenerative joint disease of the knees, tendonitis or tennis elbow, osteoarthritis and tenosynovitis of the hands/wrists, cervical sprain, and right shoulder strain, her disabilities are not undiagnosed. Moreover, the Veteran's elbow pain has been clinical related to her work in the post-office post service.
The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Low back disability
The Veteran avers that she has a low back disability causally related to active service. VA clinical records reflect that the Veteran has minor degenerative disc disease and/or minor spurs at L5-S1. Thus, the first element for entitlement to service connection has been met.
As noted above, the second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. An October 1982 STR reflects that the Veteran sought treatment for complaints of chronic low back pain. It was noted that she reported a history of trauma in 1978 when she fell.
A May 1983 report of medical history for reenlistment purposes reflects that the Veteran reported that she had, or had previously had, recurrent back pain. The physician's summary and elaboration of all pertinent data reflects "low back pain - musculoskeletal." The May 1983 report of medical examination does not reflect any findings with regard to the spine.
A November 1990 STR reflects that the Veteran sought treatment for complaints of lower left back pain for 17 hours in duration. It was noted that she had no history of back injuries. The Veteran was diagnosed with muscle strain, to be treated with Motrin. A July 1991 report of medical examination for separation purposes reflects that her spine was normal. She was noted to be in "good health."
An April 15, 1992 private record reflects that the Veteran reported "chronic, low and mid back pain which has been increasing in severity over the past 10 years." An April 18, 1992 VA examination report reflects that the Veteran reported "constant low back pain for approximately five years. She now gets intermittent radiations down her left leg." Upon examination, it was noted that the Veteran had normal flexion and extension and lateral flexion of the spine. Straight leg raise tests were negative. The report reflects an assessment of mechanical low back pain.
A 1993 private record reflects that the Veteran had complaints of "upper back pain." The Veteran reported that she had worked in the post office and had problems since then. January 1994 St. Joseph's Hospital records reflect that the Veteran injured herself at work in December 1993 while "throwing letters" or "sorting trays of letters". It was noted that the pain was in the upper back and mid thoracic area pain. She was diagnosed with thoracic strain. Physical therapy for "thoracic pain" was prescribed.
A December 30, 1994 private medical record reflects that the Veteran had complaints of low back pain. She was diagnosed with chronic back strain. A January 1995 Charter Savannah Behavioral Health System discharge summary report reflects that the Veteran was admitted on an emergency basis, stating that she had been feeling depressed for the past several months. She was noted to have a history of chronic muscle pain in the back. Additional records in 1995 also reflect complaints of back pain and a diagnosis of back strain.
A November 2001 VA clinical record reflects that the Veteran sought treatment for pain in the left lower back for two days. She denied trauma, but noted that 1 1/2 weeks earlier, she had pushed something heavy with her feet.
A June 2002 private x-ray report reflects a diagnosis of scoliosis and arthritis of the lumbar spine. There was no evidence of fracture or localized bone destruction. The intervertebral spaces appeared to be of average width. There were small spurs on the L4 and L5 vertebral bodies. The impression was mild scoliosis, small spurs on the L4 and L5 bodies, and no acute osseous abnormality.
A June 2002 VA examination report reflects that the Veteran reported the onset of low back pain in January 2002. She noted it was gradual and was now constant. The examiner opined that she had "some mild lumbar osteoarthritis."
A September 2002 VA clinical record reflects that the Veteran's lower back pain began that year. (She reported that her upper back/shoulder pain began while working at the post office.)
A May 2003 private clinical record reflects that x-rays revealed a "questionable crack in coccyx." It was noted that she had apparently fallen a "couple months" earlier.
A June 2003 VA clinical record reflects that the Veteran reported that she had lower back pain and coccyx pain. It was noted that she reported no history of trauma and that the pain, which radiated to the left leg, stops and starts again. It was further noted that she had been roller skating in March 2003 when she fell on the buttock and the pain restarted. She reports that she was further told by a private doctor that upon x-ray, it was "cracked." It was also noted that she has a history of scoliosis which was 15 degrees in the lumbar spine, and she had C5-6 herniated disk first diagnosed in 1996, and DJD of the spine.
A November 2004 private clinical record from The Orthopaedic Center reflects that the Veteran reported that she had been having low back pain for "about five years", or since approximately 1999. She reported that the back pain is constant and across the lumbosacral junction. She described it as an "ache". She also stated that her back pain "seems to be worse with prolonged weight bearing or prolonged walking and is relieved with nonuse or sitting down." An x-ray revealed a "mild curvature in the lumbar spine with left apexes approximately L-4, less than 10 degrees. There was a marked loss of lumbar lordosis with probably moderate loss of disc space height at L5-S1. The assessment was "[g]eneral lumbosacral pain without evidence of radiculopathy and normal neurologic exam. X-rays and history are consistent with lumbar discogenic pain."
A January 2005 private clinical record from The Orthopaedic Center reflects the following opinion from the examiner upon review of MRIs: "mild loss of disc height and mild disc desiccation at L5-S1 with may be a very mild broad base disc bulge at that level and some mild facet neuropathy but her central canal and neural foramen are patent. At L4-5 and remaining levels, her central canal as well as neural foramen appears to be patent at all levels. I'm not seeing any significant compressive pathology at any level. Her bone marrow appears to be normal to my eye and her vertebral body heights are well maintained."
In an August 2005 statement, the Veteran stated that she was seen on several occasions for back pain since 1982. She noted that "it started to hurt really bad in 2000. I have not worked since [August] 1998. If I sit too long- over 1 hour- my tailbone starts hurting. If I stand and go grocery shopping - 1 1/2 - 2 hours - by the time I am done- the pain in the lower back starts to travel down my leg.
VA clinical records from 2006 reflect that the Veteran was involved in a motor vehicle accident in February 2006 and she subsequently underwent surgery for a hip fracture.
A February 2007 VA clinical record reflects that the Veteran reported pain in the lower back for three to four weeks. The plan was to rule out a urinary tract infection versus lumbar spine strain versus kidney stone versus pregnancy.
A March 2007 VA clinical record reflects that the Veteran sought treatment for chronic back pain of 10 days.
A March 2007 private record from Dr. C.L. reflects that the Veteran has been having low back pain for at least five years. It was noted that overall, she had been doing "fairly well". In February 2007, she had an "abrupt onset of pain across the lumbosacral junction primarily left sided for no apparent reason." The assessment was "probable discogenic pain L5-S1 with facet arthropathy." The examiner noted that the Veteran has an intact neurologic examination without evidence of radiculopathy or myelopathy.
A March 2009 VA clinical record reflects that the Veteran reported that she still had low back pain but that morphine had helped. (The records reflect that the Veteran had been prescribed morphine for polyarthritis pain.)
A September 2010 VA examination report reflects that the examiner reviewed two sets of x-rays from two separate physicians in 2002 which indicated minor degenerative disc disease and/or minor spurs at L5-S1. The examiner also reviewed a December 2004 MRI report which indicated disc dessication and mild loss of height at L5-S1. The examiner considered the Veteran's STRs, to include the 1983 STR which noted complaints of low back pain upon reenlistment, and the 1990 single treatment for muscle strain. The examiner opined that the Veteran's lumbar back disability is less likely as not causally related to active service. He further stated that "although the SMRs indicate back complaints reaching far back as 1982-83, they are very few and far between and all diagnosed as muscle strains. The disorder diagnosed much later by her PMDs as well as on this exam is also mild and in an area of the spine most likely to be a site of [disc] degredation that is common in the general population. Therefore it is less likely than not that the current disorder is the result of or was caused by her military service."
The Board finds that the third element for service connection, continuity of symptomatology since service or a competent clinical opinion causally relating a current disability to service has not been met.
The Board has considered the statements of the Veteran and her mother. In a statement dated in September 2005, the Veteran's mother stated that since the Veteran was in the army, she has complained about severe lower back pain. While the Veteran is competent to attest to back pain, but not competent to attribute that back pain to any specific back disability. This is especially noteworthy as the Veteran has reported back pain on numerous occasions, but has also stated that the pain stopped, and began again on several occasions, to include after a post-service fall while skating in 2003. She has also reported pain after working in the post office in 1993. Given the examiner's greater level of expertise, his opinion has significantly more probative value than the Veteran's lay opinions, or those of her mother as to etiology of the current disability. In this regard, the Board notes that private records shortly after service reflect only a back "strain", while records years later reflect discogenic pain. There is no competent evidence of record that the Veteran's current disability is causally related to her complaints in service.
Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
New and material evidence -- Left foot disability
Historically, the Veteran's claim for entitlement to service connection for a left foot disability was denied by the RO in July 1995 as not being "well grounded," In June 1996, the Veteran requested that her claim be reopened. In July 1996, the RO denied the Veteran's claim because no new and material evidence had been received. The RO noted that STRs revealed one instance of treatment for pain in the heels in 1982, with no further foot problem noted. The RO found that there was no evidence of any etiological link or connection between the toe pain in 1993 and the Veteran's military service. The appellant did not appeal the decision and it became final. In 2002, the appellant requested that her claim for entitlement to service connection be reopened.
Evidence of record at time of last final denial
The evidence of record at the time of the last final denial in 1996 consisted of the STRs, the Veteran's statement in support of her claim, and VA medical records.
October and November 1982 STRs reflect that the Veteran was seen in the podiatry clinical for bilateral heel pain. It was noted that she got minimum relief with heel cups. The impression was fibrositis. The Veteran's 1983 report of medical history reflects that she reported that she had, or had previously had, foot trouble; however there was no elaboration.
A post-service April 1993 clinical record reflects that the Veteran had left foot complaints, to include pain in the left great toe. It was noted that the Veteran recalled no injury or trauma to her foot.
In a statement dated in July 1993, the Veteran asserted that she had a left foot disability that was "troublesome while [she] was in Saudi Arabia" from October 1990 to April 1991, but that she did not seek treatment because she "thought it would go away."
A 1995 record reflects that the Veteran complained of left foot pain for 6 months.
In a statement dated in September 2005, the Veteran's mother stated that the Veteran has "trouble" with both feet.
Evidence of record since the last final denial
The evidence received since the last final denial consists of numerous private and VA records, and the statements of the Veteran.
An April 1993 VA record, received by the RO in 1996, reflects that the Veteran had pain in the left great toe at the metatarsal head. She recalled no injury or trauma to her foot.
A June 1993 Savannah OPC Podiatry Clinic record reflects that the Veteran complained of a painful left 1st metatarsophalangeal joint. An X-ray showed spurring and possible osteophytes.
A May 1994 private record reflects that the Veteran was seen with complaints of swelling and pain around a great toe since late 1992 after returning from Saudi Arabia.
A January 1995 record reflects that the Veteran had left foot pain for 6 months.
An April 1997 radiology report from St. Joseph's Hospital reflects that "there has been an osteotomy of the distal left first metatarsal with a pin transfixing the osteotomy site and the toe aligned." An April 1997 private clinical record from St. Joseph's Hospital reflects that the Veteran had complaints of "very painful left great toe joint." It was noted that she was first seen by that office in May 1994 with the complaint of pain and swelling in the left first metatarsal phalangeal joint. X-ray revealed squared off metatarsal head and hypertrophic eminence from the base of the proximal phalanx and the metatarsal head. There were some degenerative changes on the x-ray. The impression was painful hallux limitis of the left metatarsal phalangeal joint. An osteotomy of the distal left first metatarsal with a pin transfixing the osteotomy site was performed, and the toe was aligned.
October 1997 records from Coastal Foot Clinic reflect that the Veteran underwent a left hallux limitis repair in April 1997, and continued to have discomfort.
An October 2000 report from SouthCoast Imaging Center reflects an impression of osteoarthritic changes at the first metatarsal phalangeal joint and evidence of prior osteotomy at the first metatarsal head. It was also noted that there was a "very small heel spur."
A June 2002 private medical record from Dr. K.R. reflects that the Veteran had complaints of pain in her left big toe joint. The impression was "painful internal fixation", and "osteoarthritis/HAV. Her hallux limitis of the left secondary to spurring." The Veteran underwent surgery to remove the internal fixation of the left 1st metatarsal, and modified McBride bunionectomy.
A February 2007 record from Dr. M.M. reflects that the Veteran had continued complaints of pain in and around the 1st metatarsophalangeal joint of the left foot. It was noted that the Veteran had no history of trauma, but a long history of surgical procedures on the joint. It was further noted that the only problem is when maximum dorsiflexion is achieved.
Old and new evidence of record considered as a whole
The Board finds that none of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for a left foot disability; therefore, the appellant's claim to reopen is denied. The private and VA records are new as they were not previously of record; however, they are not material as they do not reflect that the Veteran has a current toe disability which may be causally related to active service. At the time of the last final denial, the evidence reflected that the Veteran had a current toe disability, and she contended that she had pain in service. The newly received records reflect continued complaints of toe pain, a current disability, and the Veteran's contentions that she had pain in service. There is still no competent credible evidence that the Veteran's current left foot disability may be causally related to active service.
The Board acknowledges that in determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, in the present case, the Veteran's claim was previously denied because the evidence did not reflect a casual relationship between the Veteran's current disability and service. There is still no such evidence. The Veteran's contentions as to such a relationship were previously considered, and her lay statements as to etiology are insufficient to reopen a claim. Moray v. Brown, 5 Vet. App. 211 (1993).
The Board is mindful of the Court's decision in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), in which the Court held that the phrase "raises a reasonable possibility of substantiating the claim" must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. While, the threshold for reopening a claim is low, there must be some competent evidence that the Veteran's current disability is causally related to active service in order to reopen her claim. A Veteran may not reopen a previously denied claim merely by repeating her previous allegations, and providing evidence that her condition has continued or worsened since the prior denial.
The newly received evidence is not material as it does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board concludes that evidence has not been received which is new and material, and the claim for service connection for a left foot disability is not reopened. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2011), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Entitlement to service connection for a chronic disability manifested by gastrointestinal problems, to include irritable bowel syndrome, with consideration as due to service in Southwest Asia during the Persian Gulf War, is denied.
Entitlement to service connection for a chronic disability manifested by sleep impairment, to include obstructive sleep apnea, with consideration as due to service in Southwest Asia during the Persian Gulf War, is denied.
Entitlement to service connection for a chronic disability manifested by joint pain (other than fibromyalgia), with consideration as due to service in Southwest Asia during the Persian Gulf War, is denied.
Entitlement to service connection for a low back disability is denied.
As new and material evidence has not been received to reopen the claim of entitlement to service connection for left foot disability, the appeal is denied.
______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs